Rep. Cox Calls for Brand X Case Appeal

7/14/2004 10:06 AM Eastern

By: Ted Hearn

Rep. Christopher Cox (R-Calif.) called on the Bush administration to seek Supreme Court review of a case that could require cable operators to provide wholesale broadband access to competing Internet-service providers.

Last October, the U.S. Court of Appeals for the Ninth Circuit declared that cable-modem service is partly a telecommunications service -- a ruling Cox said was wrongheaded because it could impose unnecessary legacy phone-industry access requirements on cable.

“Internet over cable is not a telecommunications service under federal law, as the Ninth Circuit has ruled,” Cox said at a House hearing Wednesday. “I urge the president and the solicitor general to seek Supreme Court review of the Ninth Circuit’s anti-consumer, anti-technology and legally incorrect decision.”

The case is Brand X Internet Services vs. the Federal Communications Commission, which reversed a March 2002 FCC ruling that cable-modem service is purely an interstate information service and, thus, almost totally unregulated.

Acting solicitor general Paul Clement has until July 29 to file an appeal, but criminal-division officials within the Department of Justice favor the telecommunications-service classification because it protects their wiretapping authority to track terrorist conspiracies occurring on the Internet.

The National Cable & Telecommunications Association is planning a Supreme Court appeal regardless of Clement's decision.

In his statement, Cox did not address law enforcement’s concerns.

“Not for the first time the Ninth Circuit in my home state of California has wrongly decided an important case. This time it’s not the Pledge of Allegiance, but Internet access delivered via cable that the court is mucking up,” Cox said.